Case ID:170166

Dinesh Construction Company Limited v Kenya Sugar Research Foundation [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Civil Application 272 of 2017

Parties:

Dinesh Construction Company Limited v Kenya Sugar Research Foundation

Date Delivered:

05 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

Dinesh Construction Company Limited v Kenya Sugar Research Foundation [2021] eKLR

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Case Outcome:

Preliminary Objection allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL & TAX DIVISION

MISCELLANEOUS CIVIL APPL. NO. 272 OF 2017

DINESH CONSTRUCTION COMPANY LIMITED.......................................................APPLICANT

V E R S U S

KENYA SUGAR RESEARCH FOUNDATION............................................................RESPONDENT

RULING

1. Before this Court is the Notice of Preliminary Objection dated

8

th

July 2020

filed by

DINESH CONSTRUCTION COMPANY LIMITED

the Respondent / Decree Holder challenging the Notice of Motion dated

6

th

July 2020

filed by the Applicant/Judgment Debtor. The Preliminary Objection is premised on grounds that:-

“1. The application herein is Res Judicata the issues

therein having been decided on merit in the Ruling made by Olga Sewe J. on 2

nd

March 2018 and a similar oral application for stay having been denied by the same Judge on the day of delivery of the Ruling, that is to say 2

nd

March 2018, the Ruling made by Maureen Odero J on 15

th

April, 2020 and the consent order dated 27

th

July, 2018.

2) This Honourable Court has no jurisdiction to entertain

the application dated 6

th

July 2020 as it has become funtus officio having fully discharged its duty in the matter.

3) The application is hopelessly incompetent, fatally

defective and inadmissible and the same ought to be

dismissed forthwith, even suo motu.

2.

KENYA SUGAR RESEARCH FOUNDATION

, the Applicant Judgment/Debtor filed Grounds of Opposition dated

16

th

July 2020

. The Preliminary Objection was canvassed by way of written submissions. The Applicant filed its written submissions dated

10

th

September 2020

whilst the Respondent filed written submissions which were undated.

BACKGROUND

3. The genesis of this matter is the contract dated

17

th

August 2007

between the Applicant and the Respondent. Subsequent to a dispute between the parties the matter was referred to arbitration. Vide an Award published on

19

th

September 2016

as well as an Addendum dated

3

rd

October 2016

the Arbitrator awarded the Respondent the sum of

Kshs. 123,000,000/-

4. Thereafter the Respondent filed an application dated

3

rd

June 2019

seeking an order nisi to attach monies in the Applicants account in order to satisfy the decretal amount. This Court having considered the application ruled on

15

th

April 2020

that the Applicant was truly indebted to the Respondent, and allowed the application for Garnishee orders absolute.

5. The parties thereafter entered into a consent dated

27

th

July 2018

which consent provided as follows:-

“THAT by consent.

i. The decretal sum herein of Kenya Shillings One Hundred and Sixty-Four Million (Kshs. 164,000,000.00) be and is hereby liquidated in four (4) quarterly instalments as hereunder;

a) Kenya Shillings Forty-One Million (Kshs. 41,000,000.00) on or before 31

st

July 2018.

b) Kenya Shillings Forty-One Million (Kshs. 41,000,000.00) on or before 31

st

October, 2018.

c) Kenya Shillings Forty-One Million (Kshs. 41,000,000.00) on or before 31

st

January, 2019.

d) Kenya Shillings Forty-One Million (Kshs. 41,000,000.00) on or before 31

st

April, 2019.

e) Any interest accrued after the last calculation by the Court and until payment is made in full shall be calculated on reducing balance and paid together with the 4

th

instalment or on before 30

th

April, 2019.

ii. Costs of the Court proceedings and the auctioneers to be agreed or taxed.”

6. The Applicant breached the terms of the consent after making only two (2) payments and the Respondent moved to execute its judgment. At that point the Applicant filed the application dated

6

th

July 2020.

ANALYSIS AND DETERMINATION

7. The Respondent submits that the sole objective of the application dated

6

th

July 2020

is merely to delay and/or scuttle the process of execution thereby denying the Respondent the fruits of its Judgment. The Respondent contends that this matter is

‘Res Judicata’

given that the issues raised in the application had been adjudicated upon and determined by

Hon. Lady Justice Olga Sewe

vide her Ruling delivered on

2

nd

March 2018.

8. It is further contended that the matter was determined by the Ruling of this Court dated

15

th

April 2020

issuing Garnishee Orders against the Applicant. The Respondent states that the Applicants have engaged the Court in a plethora of applications in an attempt to escape their obligation to pay the decretal sum. That the application dated

6

th

July 2020

is nothing but a continuation of the same.

9. The Respondent also submits that this Court having rendered a decision on the issues vide its Ruling dated

15

th

April 2020

is now

‘functus officio’

and lacks jurisdiction to entertain the application dated

6

th

July 2020

.

10. On its part the Applicant opposes the Preliminary Objection. The Respondent submits that the Preliminary Objection is not sustainable and does not raise a pure point of law for determination. That the application dated

6

th

July 2020

cannot be deemed to be Res Judicata as the same raises new issues for determination. Finally the Applicants submit that this Court is not functus officio in the matter.

11.

Black’s Law Dictionary, 10

th

Edition

defines a Preliminary Objection in the following terms:-

“… in a case before an international tribunal, an objection that, if upheld, would render further proceedings before the tribunal impossible or unnecessary.”

12. The definition of what constitutes a Preliminary Objection was given in the celebrated case of

MUKISA BISCUIT MANUFACTURING COMPANY –VS- WEST END DISTRIBUTORS LIMITED [1969]EA

where it was held as follows:-

“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court on a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

13. Therefore in order to qualify a Preliminary Objection must raise a pure point of law. Where there exist contested facts requiring determination, a Preliminary Objection cannot be upheld. The tests to determine whether a matter raises a true Preliminary Objection was summarized in the case of

DAVID KAROBIA KIIRU –VS- CHARLES NDERITU GITOI & ANOTHER [2008]eKLR

as follows:-

“For a Preliminary Objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid Preliminary Objection should, if successful, dispose of the suit.”

14. Two main issues arise for determination as follows:-

(i) Is the application dated 6

th

July 2020 Res Judicata.

(ii) Is this Court functus officio.

RESJUDICATA

15. Section 7

of the

Civil Procedure Act Cap

21

Laws of Kenya

defines the doctrine of Res Judicata in the following terms:-

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

16. This doctrine was expounded by the Court of Appeal of Kenya in the case of

IEBC –VS- MAINA KIAI & 5 OTHERS [2017]eKLR

where it was held thus:-

“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disinjunctive but conjunctive terms;

(i) The suit or issue was directly and substantially in issue in the former suit.

(ii) That former suit was between the same parties or parties under whom they or any of them claim.

(iii) Those parties were litigating under the same title.

(iv) The issue was heard and finally determined in the former suit.

(v) The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

17. It is common ground that the parties in this matter entered into the consent dated

27

th

July 2018

which consent detailed the manner in which the decretal sum was to be paid out. The Applicant does not deny that it defaulted in execution of the consent after making only two (2) payments. The Respondent then moved to Court vide the Notice of Motion dated

3

rd

June 2016

seeking Garnishee Orders against accounts held by the Applicant. This Court in its Ruling delivered on

15

th

April 2020

allowed the application and issued Garnishee orders absolute in respect of the accounts in question.

18. In the Notice of Motion dated

6

th

July 2020

the Applicant is seeking to stay execution proceedings pending a joint confirmation of the amount due. In other words the Applicant is challenging the amount which is due and owing to the Respondent. In my view this is an issue which has already been determined by the Courts. The present Court in its Ruling of

15

th

April 2020

found and confirmed that the sum of

Kshs. 126,949,593.52

was due and owing to the Respondent. Further in entering into the consent dated

27

th

July 2018

the Applicant itself conceded to owing the Respondent the sum of

Kshs. 164,000,000/-.

A consent entered into is binding upon the parties. No application has been made to set aside the consent dated

27

th

July 2018

. In the premises I am of the view that the issues raised in the application dated

6

th

July 2020

are indeed Res Judicata.

19. The Applicants in arguing that his application is

not

Res Judicata submit that the Notice of Motion dated

6

th

July 2020

raises the following new issues:-

(i) Whether the sum of Kshs. 93,051,478.90 out of the Judgment/award of Kshs. 122,917,423 has been paid.

(ii) Whether the impugned warrants stated interest sum of the Kshs. 47,186,856/- is valid bearing in mind that the outstanding award balance is Kshs. 93,051,478.90/-.

(iii) Whether the impugned warrants stated Taxed Costs of the sum of Kshs. 14,600,000/- is valid considering that no costs have ever been assessed either in this Court or at the tribunal.

(iv) If the answers to the framed issues in (ii) and (iii) are that the impugned warrant figures are invalid and fictious, what then is the consequence of the impugned warrants and the commenced execution?

20. According to the Applicant the above are new issues raised in their application which are distinct from the issues raised in previous applications. However what the Applicant is doing is merely splitting hairs. Having conceded to owing the amount set out in the consent dated

27

th

July 2018

and having made two payments based upon the terms of that consent the Applicant cannot now turn around and claim that the amount due requires to be computed. These are issues which the Applicant ought to have been addressed

before

it entered into the consent dated

27

th

July 2018

. It is too late to raise these issues now. In any event the consent was clear that in event of any default execution was to follow. The Applicant cannot now seek to run away from that clause.

21. I do agree with the Respondent that the applicant is merely engaging in filing numerous frivolous applications with the sole intent of evading the payment of the decretal sum. The Court will not allow itself to be used as a pawn in such games. Litigation it is said must come to an end. In the case of

WILLIAM KOROSS –VS- HEZEKIAH KIIPTOO KOMEN & 4 OTHERES [2015]eKLR

the Court held as follows:-

“The philosophy behind the principle of res judicata is that there has to be finality, litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation that does little more than vex and add to costs.

A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go

.” [own emphasis]

FUNCTUS OFFICIO

22. The doctrine of

‘Functus Officio’

was stated by the Court of Appeal in the case of

TELCOM KENYA LTD –VS- JOHN OCHANDA [2014]eKLR

as follows:-

“Functus Officio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the final decision thereon-

The general rule that final decision of a Court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division.”

23. Similarly in

RAILA ODINGA –VS- IEBC & 3 OTHERS Petition No. 5 of 2013

the Supreme Court of Kenya cited with approval the following passage from

“The Origins of the Functus Officio Doctrine with Specific Reference to its Application in Administrative Law”

by

Daniel Malan Pretorious

:-

...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a

general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

In addition the Supreme court also referred to the case of

JERSEY EVENING POST LIMITED –VS- A. THANI [2002]JLR 542

at pg. 550 where the Court stated:-

“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected.

The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available

.” [own emphasis]

24. This Court having in its Ruling of

15

th

April 2020

determined that the Applicant was truly indebted to the Respondent and having adopted the consent dated

27

th

July 2018

as an order of the Court is now functus officio in the matter. To hold otherwise would amount to reviewing the consent which has not been prayed for.

25. For the above reasons I find merit in the Preliminary Objection dated

8

th

July 2020

. Accordingly the Notice of Motion dated

6

th

July 2020

is hereby truck out. Costs are awarded to the Respondent/Decree Holder.

Dated in Nairobi this 5

TH

day of FEBRUARY, 2021.

.........................................

MAUREEN A. ODERO

JUDGE